 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
In re Clark12/28/1984
I
Appellant's principal assignment of error is that the trial court erred in concluding as a matter of law that he neglected his minor child within the meaning of G.S. 7A-289.32(2) and G.S. 7A-278(4), and G.S. 7A-289.32(4).
In its petition, petitioner DSS sought to terminate appellant's parental rights under G.S. 7A-289.32(2) and G.S. 7A-289.32(4). The following conclusions of law appear in the adjudication order:
[Conclusion No. 2] That Larry Wayne Clark and Patricia Whisnant Clark, the Respondents herein, have neglected the minor child within the meaning of North Carolina General Statutes § 7A-289.32(2) and § 7A-278(4).
[Conclusion No. 3] That the parents have wilfully left the child in the care of the Burke County Department of Social Services, Petitioner herein, for more than six (6) consecutive months without showing positive response or any interest in establishing a parental relationship to the said child or to provide for the future of said child.
These conclusions were duly incorporated by reference into the disposition order and the amended order.
A
We are uncertain upon which statutory subsection of G.S. 7A-289.32 the trial court was relying in Conclusion No. 3, as it refers to none, and contains the grounds from G.S. 7A-289.32(3) but the time period from G.S. 7A-289.32(4). However, termination of parental rights may be upheld if the trial court properly has found one of the grounds enumerated in the statute. In re Pierce, 67 N.C. App. 257, 312 S.E.2d 900 (1984). Since we find that the trial court properly terminated appellant's parental rights under G.S. 7A-289.32(2) on grounds of neglect, we need not determine whether Conclusion No. 3 supported a termination of appellant's rights under either G.S. 7A-289.32(3) or G.S. 7A-289.32(4).
B
In Conclusion of Law No. 2, the trial court concluded that appellant had neglected his child pursuant to G.S. 7A-289.32(2) and G.S. 7A-278(4). G.S. 7A-289.32(2) (1983 Supp.) allows parental rights to be terminated for neglect upon a finding that the child is "a neglected child within the meaning of G.S. 7A-517(21)." Prior to a 1983 amendment, G.S. 7A-289.32 cited G.S. 7A-278(4) for the definition of a neglected child. G.S. 7A-278(4) has been repealed and replaced by G.S. 7A-517(21). By its reference to G.S. 7A-278(4) instead of G.S. 7A-517(21), the trial court inadvertently relied on the former version of G.S. 7A-289.32(2). See G.S. 7A-289.32(2) (1981). However, we find that the inadvertence did not prejudice appellant. The definitions of neglected child contained in the two
statutes are nearly identical. See In re Smith, 56 N.C. App. 142, 147, 287 S.E.2d 440, 443, cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982). (G.S. 7A-517(21) "tracks the language appearing in former N.C.G.S. 7A-278(4)".) The adoption of G.S. 7A-517(21) was primarily a recodification, rather than a change in the substantive law. The standard by which a child may be found neglected is unchanged.
C
Since no prejudice resulted from the mistaken citation, the remaining issue is whether the record supports the finding
Page 1 2 3 4 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|